Citation Nr: 21063866 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-34 929 DATE: October 18, 2021 ORDER Service connection for sleep apnea is denied. FINDING OF FACT The Veteran's sleep apnea has not been shown to be causally or etiologically related to any disease, injury, or incident during service; and it has not been shown to be related to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.1. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to October 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, March 2020, and October 2020, the Board remanded the case for additional development. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to service connection for sleep apnea. The Veteran asserts that his sleep apnea is secondary to his major depressive disorder (MDD). As an initial matter, the Board finds that evidence of record reflects that the Veteran has a current diagnosis of obstructive sleep apnea, as shown by an August 2019 VA examination. The Veteran's service treatment records (STRs) are silent for any complaint, diagnosis, or treatment of the sleep apnea or sleep-related symptoms during the Veteran's active service. In Reports of Medical Examination from October 1972, December 1973, February 1975, and August 1976, the examiners found the condition of the Veteran's nose, sinus, mouth, and throat to be normal. In Reports of Medical History from October 1972, December 1973, February 1975, and August 1976, the Veteran did not report any problems with sinusitis, asthma, shortness of breath, any ear, nose, or throat trouble, or frequent trouble with sleeping. In a January 2006 VA TAP Green Progress Note, the Veteran reported that his friend said he stopped breathing while he was sleeping. The Veteran stated that he had a history of untreated sleep apnea for two or three years. He stated that his girlfriend told him what it was and that it is serious. In a January 2010 VA Primary Care Attending Note, the Veteran's fiancée stated that the Veteran stopped breathing at night and snores. In an April 2010 VA Suicide Prevention Note, the Veteran reported getting three or four hours of sleep a night; and in a July 2010 Addendum, he reported poor sleep. In another July 2010 Addendum, the Veteran was observed to sleep restfully with even, non-labored respirations, but he was also found to have excessive snoring. In a May 2012 VA PACT Note, the Veteran reported that his significant other notices that he stops breathing during sleep and snores. In a January 2013 VA Sleep Medicine Diagnostic Study Report, the Veteran reported a history of difficulty falling asleep, and he was diagnosed with severe obstructive sleep apnea syndrome. Soon after this, he was given a CPAP. In a July 2013 VA Primary Care Resident Note, the Veteran reported that he had been sleeping better since using the CPAP. In an October 2017 sleep apnea disability benefits questionnaire (DBQ), a private physician diagnosed the Veteran with obstructive sleep apnea. The examiner stated that the Veteran was diagnosed with severe obstructive sleep apnea and prescribed a CPAP after complaints of difficulty falling asleep. This was confirmed by sleep study completed on December 2012. Continuous medication was required for control of the sleep disorder. The private examiner stated that Veteran's sleep apnea impacted his ability to work in that he had poor sleep efficiency and poor tolerance of his CPAP. His inability to use the CPAP as prescribed caused him to be excessively sleepy during the day and required him to have to nap. The Veteran stated that his mask stressed him out, and this caused him to remove it prematurely in the middle of the night. In a March 2018 VA Primary Care Attending Note, the Veteran reported that he was not wearing the CPAP because he did not like wearing it. In a January 2019 VA Otolaryngology Consult, the Veteran reported chronic issues of choking in his sleep. He stated that this occurs regularly, and at times, he has a sensation of something in his throat. He stated that he has a CPAP machine, but he often does not use the machine due to it being bulky. He stated that, when he is awake during the day, he has no issues with breathing, swallowing, pain, or infection in the throat. The examiner observed that the Veteran had more prominent oropharyngeal tissues and an incidental vocal cord polyp. The Veteran stated he was going to attempt weight loss and diet modification to improve his sleep apnea. In a June 2019 VA Endocrinology Consult, the Veteran reported that he snores significantly. He does not wake up rested, and he wakes up as tired as when he went to bed. He reported that he had obstructive sleep apnea, but he did not usually use his CPAP machine because it is very bulky. In an August 2019 VA examination, the VA examiner diagnosed the Veteran with obstructive sleep apnea. The Veteran stated that the onset of the condition was 1974, and his girlfriend told him that he snores and lashes out while sleeping. The Veteran reported symptoms of snoring, sluggishness, drowsiness, and fatigue. He reported that he had a sleep study in 2012 and was diagnosed with sleep apnea. He was given a CPAP, which he stated he uses most days. Continuous medication was not required for control of the sleep disorder. The examiner found symptoms of persistent daytime drowsiness. The examiner also found that the condition did not affect the Veteran's ability to work. In a March 2020 VA medical opinion, the VA examiner determined that the Veteran's sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that, in the August 1976 separation examination from the Veteran's STRs, the Veteran indicated that he had not experienced frequent trouble sleeping. No other evidence of record demonstrates a causal relationship between the Veteran's obstructive sleep apnea and his active service. Based on the foregoing, the Board finds that the Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident in service. Thus, service connection for sleep apnea on a direct basis is not warranted. The Board has also considered whether the Veteran's sleep apnea is secondary to his service-connected disabilities. As noted earlier, the Veteran has asserted that his sleep apnea is attributable to his service connected MDD. More specifically, the Veteran and his representative have asserted that the Veteran's MDD have caused the Veteran to overeat and become obese, and this in turn has led to the Veteran's sleep apnea. In this regard, the Board notes that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. However, in order to show secondary service connection is warranted under such a theory, a veteran must show (1) that his service-connected disability caused or aggravated his obesity and, if so, (2) whether the obesity as a result of the service-connected disability was a substantial factor in causing or aggravating his claimed condition, and (3) whether the claimed condition would not have occurred or worsened but for obesity caused by the service-connected disability. Id; Walsh v. Wilkie, 32 Vet. App. 300 (2020). In an October 2017 Appellate Brief, the Veteran's representative opined that the evidence shows that the Veteran's depression leads to his increased appetite, causing obesity, which also factors into his sleep apnea. In a May 2021 Appellate Brief, the Veteran's representative stated that the evidence supports that the Veteran's obesity and weight gain are due to his service-connected mental condition, and the obesity in turn contributes to his sleep apnea. In a November 2019 buddy statement, a friend of the Veteran stated that the Veteran would go into a deep depression, become withdrawn, and do a lot of overeating. The friend told the Veteran a few times that he needed to do something about his overeating. The friend and the Veteran dated for a while. As the Veteran's weight increased, he had sleep issues and was snoring loudly, and he would have the TV on sometimes to help him sleep. This made it hard to sleep in the room with him, and the friend had to move to a separate room from him in their home. The friend opined that these issues were linked with his depression. She stated that, even when the Veteran lost some weight at one point, he still had sleep problems and snoring. In the October 2017 sleep apnea DBQ, the private examiner stated that research has shown that psychiatric disorders are commonly associated with OSA. A recent study found that subjects with depression compared with non-depressed have a higher prevalence of a sleep apnea diagnosis. Another study found that, with CPAP treatment, both sleep apnea and psychiatric symptoms decreased, providing further evidence of the co-morbidity of these conditions. The examiner opined that it is as likely as not that the Veteran's depressive disorder aided in the development of obstructive sleep apnea and permanently aggravated his obstructive sleep apnea. In an August 2019 VA medical opinion, the VA examiner opined that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service connected MDD. The VA examiner acknowledged that the October 2017 private DBQ noted that sleep apnea is more prevalent in those with depression than those without depression. However, the VA examiner explained that this does not prove a causal relationship. According to Motamedi, McClary, & Amedee (2009), obstructive sleep apnea is caused by "repetitive bouts of upper airway obstruction during sleep as a result of the narrowing of respiratory passages." The most common site of obstruction is the nasopharynx. Anatomic defects are thought to play a major role in sleep apnea. The article further postulated that certain physical characteristics that may contribute to obstructive sleep apnea include obesity, thickened lateral pharyngeal walls, nasal congestion, enlarged uvula, facial malformations, micrognathia, macroglossia, and tonsillar hypertrophy. The Veteran's BMI was 31.5 during at a June 2019 VA medical appointment, and a BMI of 31.5 is indicative of obesity. Therefore, based on the article, obesity contributes to the development of sleep apnea. The VA examiner stated that the Veteran's sleep apnea was not caused by a psychiatric disorder or depression, and a nexus has not been established. In a March 2020 VA medical opinion, the VA examiner found that the Veteran's sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of the veteran's service-connected psychiatric disability. The VA examiner acknowledged an article submitted by the Veteran concerning a possible association between psychiatric disorders and sleep apnea. The article described sleep apnea and being, not caused by PTSD, but aggravated by PTSD; and the article gives recommendations that such veterans should be evaluated for sleep apnea. The article stated, "Sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in Veterans Health Administration beneficiaries. This association suggests that Veteran's with psychiatric disorders and coincident symptoms suggesting sleep-disordered breathing should be evaluated for sleep apnea." The March 2020 VA examiner could not determine a baseline of severity of the sleep apnea based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the Veteran's service connected MDD. The medical evidence was not sufficient to support a determination of a baseline level of severity. However, the March 2020 VA examiner stated that the Veteran's sleep apnea was at least as likely as not aggravated beyond its natural progression by the Veteran's service-connected psychiatric disability. The VA examiner opined that the sleep apnea was aggravated over time by PTSD, although it was not clinically significant to the Veteran at time of his entrance exam. Although the August 1976 separation exam indicated that the Veteran had not experienced "frequent trouble sleeping", the Veteran's condition has progressed to have trouble sleeping, including a diagnosis of sleep apnea. The article the Veteran submitted described sleep apnea and being, not caused by PTSD, but aggravated by PTSD; and the article gives recommendations that such a Veteran should be evaluated for sleep apnea. In the October 2020 Board decision, the Board found that the March 2020 VA medical opinion was inadequate for decision-making purposes because it was based on a false factual premise and on speculation. Firstly, the examiner mistakenly characterized the Veteran's service-connected psychiatric disability as PTSD. The Veteran is service connected for MDD with psychotic features, not for PTSD. Secondly, the examiner's assertion that the Veteran had a clinically insignificant sleep disturbance in service is purely speculative and is controverted by the evidence. The STRs show no reports of sleep disturbance, and the Veteran denied having trouble sleeping on the August 1976 Report of Medical History. Moreover, the Veteran has not reported that he had in-service sleep disturbances. Finally, the Board stated that the article submitted by the Veteran discussed a study that showed higher prevalence of sleep apnea among veterans with psychiatric disabilities. The article does not interpret the study as showing that psychiatric disabilities cause or aggravate sleep apnea, although it does suggest that the study supports a finding that sleep disturbances may aggravate psychiatric disabilities. The Board found that remand was necessary so that a further addendum opinion may be obtained as to whether the Veteran's sleep apnea is aggravated by his service-connected psychiatric disability. The Board also acknowledged the Veteran's representative's assertion that obesity contributes to the development of obstructive sleep apnea, and the assertion that the Veteran overeats due to his service-connected psychiatric disability, which caused him to become obese and consequently develop sleep apnea. The Board found that a medical opinion addressing this assertion was necessary. In a December 2020 VA medical opinion, the VA examiner found that the claimed sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected MDD. The VA examiner also found that the Veteran's sleep apnea was less likely than not aggravated beyond its natural progression by the service-connected MDD. The VA examiner explained that obstructive sleep apnea and obesity from the service-connected conditions are not medically related. The examiner also stated that the Veteran's obstructive sleep apnea is a separate entity entirely from the obesity from the Veteran's service-connected conditions and unrelated to it. Also, a thorough review of medical literature and treatment note weights failed to demonstrate a causal relationship. Obesity is primarily due to consuming more calories than the body burns off, which is a choice. The VA examiner observed that, from the Veteran's weight history, the Veteran is clearly able to lose weight despite his service-connected disabilities. The examiner also noted that literature submissions are not supported by evidence. Thus, the examiner found that a nexus has not been established. The December 2020 VA examiner additionally stated that nothing in the medical literature shows that a mental health condition causes closure of the airway during sleep. Association, correlation, and risk are not cause. As a mental health condition cannot contribute to the closure of the airway during sleep, no aggravation is plausible. The VA examiner observed that a 2019 treatment note indicated that the Veteran did not wear his CPAP, and an ENT note referenced the Veteran saying the CPAP mask was too bulky. Nothing shows the Veteran cannot wear a CPAP due to any reason; he just does not want to wear it. Thus, the VA examiner found that no nexus existed. The Board affords great probative weight to the December 2020 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and the relevant medical history, and provided a complete rationale. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran submitted an article concerning a possible connection between psychiatric disorders and sleep apnea. In this regard, such evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). In this case, the article only provides general information as to the possibility that a relationship exists between psychiatric disorders and sleep apnea. The article is not accompanied by any corresponding clinical evidence specific to the Veteran, other than the speculative opinions previously discussed, and they do not suggest a generic relationship between the Veteran's psychiatric disorder and his sleep apnea with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds that the information in the article is not relevant as to the matter for consideration and, therefore, is not probative to this case. Wallin, supra; Sacks, supra. The Board has considered the Veteran's statements that his sleep apnea is caused by or related to his active service or his service-connected MDD. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the nature, etiology, or cause of his sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the etiology of his sleep apnea are not competent evidence and, consequently, are afforded no probative weight. Based on the above, the Board finds that the preponderance of the evidence is against a grant of service connection for sleep apnea on a direct or secondary basis. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and his claim of service connection for sleep apnea must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.